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January 18, 1955

UNITED STATES of America, Plaintiff,
Owen LATTIMORE, Defendant

The opinion of the court was delivered by: YOUNGDAHL

Owen Lattimore was indicted October 7, 1954, on two counts of perjury allegedly committed before the Senate Internal Security Subcommittee on or about February 27, 1952. *fn1"

The first count charges that Lattimore perjured himself when he denied that he was a 'follower of the Communist line.' *fn2" It avers that in his positions and policies as to political, diplomatic, military, economic and social matters, there can be found expressed in his statements and writings from 1935 to 1950, several hundred instances in which he followed the Communist line, meaning that he:

 '* * * followed in time, conformed to, complied with and paralleled the positions taken, the policies expressed and propaganda issued on the same matters by the Government of the Soviet Union, the Communist Party of the Soviet Union, the Comintern and its successors, the various Communist governments, parties and persons adhering to Communism and accepting the leadership of the Soviet Communist Party.' (Count I, paragraph 5).

 The second count charges that Lattimore perjured himself when he testified he had never been a 'promoter of Communist interests.' *fn3" Such a person is defined as one who:

  * * * knowingly and intentionally contributed to the growth, enlargement and prosperity of Communism by acting to further, encourage and advance those objectives of political, diplomatic, military, economic and social interest to the Government of the Soviet Union, the Communist party of the Soviet Union, the Comintern and its successors, the various Communist governments, parties and persons adhering to Communism and accepting the leadership of the Soviet Communist party.' (Count II, paragraph 5).

 Defendant moved to dismiss the indictment, *fn4" alleging that each of the two counts violate both the First and Sixth Amendments to the United States Constitution. The Court's holding that both counts should be dismissed on the ground of vagueness renders unnecessary a determination of their constitutionality under the First Amendment.

 However, when the charge in an indictment is in the area of the First Amendment, evidencing possible conflict with its guarantees of free thought, belief and expression, and when such indictment is challenged as being vague and indefinite, the Court will uphold it only after subjecting its legal sufficiency to exacting scrutiny. *fn5"

 When passing upon the Motion to Dismiss, '* * * the allegations of the indictment must be accepted as they are written.' *fn6" This we do, *fn7" and are of the opinion that it does not, as a matter of law, inform the accused of the nature and cause of the accusation against him. Neither does it charge an offense with reasonable clarity so that the accused can make his defense, nor furnish the accused with such a description of the charge that he would be able to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause.

 In upholding the dismissal of the first count in the prior indictment Judge Prettyman, speaking for the Court of Appeals, aptly stated,

 'Not only is it a basic rule that 'Criminal statutes must have an ascertainable standard of guilt or they fall for vagueness', but it is equally well established that an indictment must charge an offense with such reasonable certainty that the accused can make his defense. The cases on the point are myriad, as reference to any authority quickly reveals.' *fn8"

 Testing the two counts against this principle, the Court is satisfied that they fail to meet the prescribed standard of definiteness and so must fall for vagueness.

 Perjury, as presently charged to defendant under 18 U.S.C. ยง 1621, occurs when a person under oath '* * * willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true * * *'. *fn9" The substance of such crime is a defendant's lack of belief in the truth of his testimony as of the moment he made it. For a jury to conclude that perjury has been committed, in fact, it must determine what the words meant to the defendant at the time he offered them as his testimony, and then conclude that the defendant did not at that time believe in the truth of such testimony according to the meaning he ascribed to the words and phrases he used. *fn10"

 Under Count I, perjury is charged to the statement by Lattimore that he was not a follower of the Communist line. The Government supplies a definition of this phrase in the indictment. The Government is prompt to concede that no such definition was presented to the defendant at the Committee hearing in 1952; that it was formulated after Lattimore testified; that it was prepared after independent research conducted by the United States Attorney's Office. *fn11" The sources of such research, however, do not appear. The Government contends that it is a matter of common knowledge as to what is meant by 'follower of the Communist line' and that people differ but little in their under standing of the term; *fn12" that it is not a minimal requirement of following the Communist line to zig and zag with it, *fn13" since it does not always zigzag; *fn14" and that the Communist line means the Soviet Communist line and all other organizations that followed the Soviet line. *fn15" The Government claims a right to prove, by men who are familiar with the common usage of the phrase and by documents of defendant's, that the definition found in the indictment was the same definition which Lattimore had in mind when he testified; *fn16" that the jury should be left to determine what is the Communist line, *fn17" what it means to follow such a line, what Lattimore understood as the Communist line, what Lattimore meant by the word 'follow', and lastly, having decided the above, that Lattimore, when he said he was not a follower of the Communist line, did not at that time believe in the truth of such testimony according to the meaning he ascribed to these words. *fn18"

 While the proper test of perjury is subjective, insofar as it is based upon the understanding of the witness himself regarding the words that he used, a criminal prosecution must have certain objective standards. *fn19" Most often in perjury cases the objective standard is not hard to come by; what the accused considered his statements to mean is not in issue since the words or phrases involved have one clear, accepted and recognized meaning. Here, the phrase 'follower of the Communist line' is subject to varying interpretations. It has no universally accepted definition. The Government has defined it in one way and seeks to impute its definition to the defendant. Defendant has declined to adopt it, offering a definition of his own. It would not necessitate great ingenuity to think up definitions differing from those offered either by the Government or defendant. By groundless surmise only could the jury determine which definition defendant had in mind.

  The Court cannot escape the conclusion that 'follower of the Communist line' is not a phrase with a meaning about which men of ordinary intellect could agree, nor one which could be used with mutual understanding by a questioner and answerer unless it were defined at the time it were sought and offered as testimony. *fn20" This count, even with its apparent definition, is an open invitation to the jury to substitute, by conjecture, their understanding of the phrase for that of the defendant. The meaning of such a phrase varies according to a particular individual's political philosophy. To ask twelve jurors to agree and then decide that the definition of the Communist line found in the indictment is the definition that defendant had in mind and denied believing in, is to ask the jury to aspire to levels of insight to which the ordinary person is incapable, and upon which speculation no criminal indictment should hinge. *fn21" We cannot debase the principle that:

 'The accused is entitled under the Constitution to be advised as to every element in respect to which it is necessary for him to prepare a defense.' *fn22"

 When elements in an indictment are so easily subject to divergent interpretation, the accused is not adequately apprised of the charges as to enable him to prepare a defense. *fn23" It therefore fails to conform to the requirements of the Sixth Amendment and Federal Rules. *fn24" It cannot be cured by a bill of particulars. *fn25"

 The second count charges that Lattimore perjured himself when he testified he had never been a 'promoter of Communist interest.' *fn26"

 Defendant contends, in essence, that this count is an identical twin of Count I, differing only in the prose in which the Government has dressed it; that in really means the same thing as 'follower of the Communist line', i.e., defendant allegedly followed the Communist line in that he wrote certain articles, and he promoted the Communist interests in that he followed the Communist line in these articles; *fn27" that while the word 'promoter' might be definite enough in an indictment when tied to certain specific acts, it has been rendered formless and indefinite by the very definition and listing of topics which the Government has attached to it, i.e., he encouraged and advanced the political, economic, military, diplomatic, and social policy of the Soviet Union, China, and any other Communist country, in certain situations. *fn28"

 The Government contends that the phrase is sufficiently clear by reason of its specification of content and definition; that Count II is in no way dependent upon Count I other than in its reliance upon it for purposes of definition and topical content. *fn29"

 This entire perjury indictment arises out of, and is essentially founded upon, the statements, correspondence, and editorial comments of defendant. It does not rest upon alleged acts of espionage or such an act as membership in the Communist party. The Government pointed to the activities of an espionage agent as an example of how one might knowingly promote Communist interests without also being a knowing follower of the Communist line -- whatever that may be. But the Government was quick to state that it was not charging defendant with being an espionage agent. *fn30" It should be kept in mind that under this count only written comments and opinions are involved and are said to have produced a certain effect, namely, to have promoted Communist interests. Such writings and comments are not alleged to have produced the designated result over a short period of time, and in isolated instances, but over a fifteen-year period. By no stretch of the imagination can we comprehend how this consistent result (promoting Communist interests) could have been so attained had not the commentator been both aware of what the Communists were asserting during this extended period, and then knowingly adhered to these assertions (followed the Communist line). If defendant had contradicted the Communists' assertions, he could hardly be said to have promoted their interests. *fn31"

 Count II, thus dependent upon Count I, cannot stand, being anchored to, partaking of, and plagued by, all its vagueness and indefiniteness. While some paragraphs of Count II specifically refer to Count I, either for the definition of the Communist line or for topical references wherein defendant promoted Communist interests, *fn32" all of the paragraphs, realistically appraised, are rooted in, and presume a prior finding of, the meaning of the phrase 'follower of the Communist line'.

 The charges here serve only to inform the defendant that his sworn statements are to be tested against all his writings for chance parallelism with, or indirect support of, Communism regardless of any deliberate intent on his part. They demonstrate that the Government seeks to establish that at some time, in some way, in some places, in all his vast writings, over a fifteen-year period, Lattimore agreed with something it calls and personally defines as following the Communist line and promoting Communist interests.

 Jury inquiries would be limitless. No charge by the Court could embody objective standards to circumscribe and guide the jury in its determination of what the witness might have meant regarding words he used. With so sweeping an indictment with its many vague charges, and with the existing atmosphere of assumed and expected loathing for Communism, it would be neither surprising nor unreasonable were the jury subconsciously impelled to substitute its own understanding for that of defendant.

 To require defendant to go to trial for perjury under charges so formless and obscure as those before the Court would be unprecedented and would make a sham of the Sixth Amendment and the Federal Rule requiring specificity of charges.

 The indictment will therefore be dismissed.

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